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Protect Yourself with a Prenuptial Agreement Before You Wreck Yourself with a Divorce

Wedding season will be upon us soon, and if you or somebody you care about will be getting married this summer, now is the time to strongly consider getting or recommending a premarital agreement if one has not already been executed.

While premarital agreements might have previously been thought of instruments used mostly for only the extraordinarily wealthy, the reality is that premarital agreements can address a wide array of issues to protect future spouses of any socioeconomic spectrum. Most people who are familiar with the concept of a prenuptial agreement probably already know that premarital agreements can be used to address how community property will be divided upon divorce and which property already owned by a spouse at the time of marriage will be confirmed as that spouse’s separate property.  But premarital agreements can be used for other reasons, too.  For example, a premarital agreement can preserve family fortunes for children from an earlier marriage; eliminate, limit, or set any future alimony or spousal support obligations; predetermine the parties’ division of labor during marriage, including but not limited to child care, household maintenance, and managerial rights and duties in connection with family finances; and clarify how taxes will be filed during the marriage and who will be responsible for any income tax liabilities during the marriage. See Kinser & Clark, Marital Agreements or Pre-divorce Planning, Advanced Family Law Drafting Course, State Bar of Texas CLE, ch. 18 (2002), at 1-2.

There are, however, prohibited contractual provisions of premarital agreements. Of course, any illegal provisions of a premarital agreement will not be enforced as a premarital agreement cannot violate public policy.  Tex. Fam. Code §4.003(a)(8); See Williams v. Williams, 569 S.W.2d 867, 870-71 (Tex. 1978).  A premarital agreement also must not adversely affect a child’s right to receive child support.  Tex. Fam. Code §4.003(b).  A premarital agreement of course cannot be used to intentionally defraud preexisting creditors either.  Tex. Const. art. 16, §15.

So what are the basic requirements of a premarital agreement? Section 4.002 of the Texas Family Code provides that a premarital agreement must be in writing, need not require consideration, must afford the parties the opportunity to receive full disclosure of their property and financial obligations prior to signing, and must be signed before marriage.

However, just because the basic requirements of a premarital agreement are relatively simple, it does not necessarily follow that premarital agreements will always be enforced and upheld as long as the basic requirements outlined above are met. There are statutorily defined defenses against enforcement of a premarital agreement, including involuntary execution and unconscionability that should be carefully discussed with an attorney before the signing of a premarital agreement. See Tex. Fam. Code §4.006.

As with any contract, it is best for both future spouses to be represented by counsel in an effort to protect the enforceability of the premarital agreement and prevent an unrepresented party from being able to argue that he or she was a victim of disparate bargaining power. If you or a loved one will be getting married this summer, call McClure Law Group today for further consultation on how we can help cross the “t’s” and dot the “i’s” before the knot is tied!